With the increase in worksite enforcement activities by the Obama administration, naturally, the focus of employers has been on satisfaction of the Form I-9 requirements to ensure that no undocumented worker is hired. The problem is that employer vigilance in this area has ignored the anti-discrimination provisions of the immigration laws that were adopted as part of the IRCA. Recently, the U.S. Department of Justice ("DOJ") has pressed several anti-discrimination cases that serve as painful reminders of those provisions.

On May 31, 2011, the DOJ announced that it had reached a settlement agreement with the American Academy of Pediatrics ("AAP"), an organization of 60,000 pediatricians based in Elk Grove, Illinois. The settlement followed an investigation into claims of immigration-related employment discrimination. According to the DOJ, AAP impermissibly allowed postings on its job search website for physicians, nurses, and other medical professionals that limited applications to only U.S. citizens and certain U.S. visa holders, even though other work authorized immigrants should have been allowed to apply as well. As part of the settlement, AAP agreed to pay $22,000 in civil fines, train its personnel on the immigration laws, and provide periodic compliance reports to the DOJ for three years.

On August 29, 2011, the DOJ announced that it had settled its discrimination claims against Farmland Foods ("Farmland"), a subsidiary of Smithfield Foods. The DOJ had sued Farmland alleging that it discriminated against non-U.S. citizens by imposing unnecessary documentation requirements upon new employees seeking to establish work authorization. According to the DOJ, Farmland "required all newly hired non-U.S. citizens and some foreign-born U.S. citizens … to present specific, and in some cases, extra work authorization documents beyond those required by federal law." Under the terms of the settlement, Farmland agreed to pay $290,400, the largest civil penalty assessed under the anti-discrimination provisions since they were enacted as part of the IRCA in 1986.

In July 2011, the DOJ sued Mar-Jac Poultry Inc., a Georgia poultry processing plant, and alleged that the plant discriminated against non-citizens by requiring them to provide immigration documents issued by the federal government before considering them for employment, but giving U.S. citizens greater latitude in showing documentation before considering them for employment. On July 21, 2011, the DOJ settled a reemployment discrimination lawsuit with Brand Energy and Infrastructure Services ("Brand Energy"), another Georgia-based company. Brand Energy agreed to pay a fine of $43,560 and back pay of $7,200 to a legal immigrant who was improperly fired when he could not comply with the company's request for specific employment documentation.

The prospect of additional anti-discrimination actions by the DOJ remains significant. The combination of the poor economy, the administration's emphasis on worksite enforcement, and the existence of a DOJ enforcement office that focuses exclusively on these issues should make it clear that these actions will increase in the foreseeable future. Thus, employers looking to avoid liability in this area need to include a thorough review of the IRCA's anti-discrimination provisions in their From I-9 training. Since many of these violations also occur in the recruitment and evaluation of new hires, this training should expand to include all those involved in the recruitment and on-boarding process.